Stepparenting: An Overview of Common Legal Issues
The traditional notion of family is starkly different from what we see today. Stepparents are taking on larger and larger roles in raising children whether or not they are biologically theirs. There are a variety of reasons for this change in familial structure, but the end result is the same: a unique family unit that is not legally protected by the same rights as nuclear families.
Increasingly, stepparents are assuming parental responsibilities in the absence of a biological parent. Unfortunately, this creates a legal gray area that many are not aware of until a dispute arises. For example, many non-biological parents assume a physical and/or financial role in their stepchildren’s lives and frequently provide a caregiver role – cooking for them, driving them to school, reading with them, doing homework with them, bathing them, and putting them to bed and saying goodnight. In fact, some stepparents actually do more caretaking than one or both biological parents. Again, there is no legal protection or protection if the family configuration changes. If the stepparent later initiates a custody or visitation dispute, or if the biological parent wishes to move and uproot the family, the stepparent does not have standing to object.
Even more complicated is a family where a married couple both have children from prior relationships. While step family and blending family is the current buzzword and trend , many people overlook the fact that a step parent is not a psychological parent. Thus, even evidence of a close and loving relationship does not automatically grant the stepparent visitation rights. A multi-family situation can become extremely complicated when a relationship breaks down. In many cases, a new family may not have any right to custody or visitation with a child, and the biological parent may even exclude the stepparent from seeing the child. This becomes problematic when frequently weekend visitation and shared summer vacations are shared by the biological parent and his/her new spouse, or where schools repeatedly send all notices to the biological parent’s home where the stepparent may reside and where the biological parent’s friends have access to the stepparent and the child.
In many of these cases, the stepparent has become a secondary parent who has played an active role in the child’s life, and thus has a parent/child bond with the child.
Few attorneys are experienced in this area of law, and few judges appreciate the nature and extent to which separately divorced families operate as families – with or without a divorce. Even fewer judges are sympathetic to those stepparents who really have been caring for the child. For that reason, many stepparents go without and are without any recourse when they are hurt by the system.
Parental Authority: Laws Stepparents Must Familiarize Themselves With
To understand what parental responsibility a step parent might have it is important to understand what parental responsibility is in the first place. The definition of parental responsibility is set out at section 3 of the Children Act 1989 as being those rights, duties, powers, responsibilities and authority lawfully accorded a parent (whether by the general law or by order of a court) in relation to a child and his property.
In layman’s terms this is just about everything. The biological parents will, until a court decides otherwise, have automatic parental responsibility for the children they share and this is not disputed. It is also likely that the courts will take the view that the parent’s partner also has parental responsibility and therefore guardianship as soon as the couple gets married or the relationship is clearly established as long as it is relevant to do so.
It is possible for a couple who are not married but have children to agree that the step parent should have parental responsibilities too; if not there are certain requirements which need to be met before an application can be heard. The step parent must also be agreeable to give up some parental responsibility if the relationship should end through divorce or separation and a new partner or parent comes into play. Each case will be different and will need to be reviewed carefully to ascertain what is in the best interests of the children.
There are other scenarios when a step parent can obtain parental responsibility from the biological parent, for example after a court application – this type of application can be made whether the couples are married or not.
Visitation Rights for Stepparents
It is not uncommon that a step parent may want to have a more significant presence in their step child’s life after divorce. For example, if a parent who has not been involved or who may live in another state and visits with the child sporadically, the parent may agree to that visitation be with them at the step parent’s home. Thus, this step parent may spend weekends with that child and that parent or in other circumstances after being awarded the right from a Court. Generally, the two (2) areas where existing case law provides authority for creating visitation rights for a step parent are as follows: (1) within the discretion of the trial court to oversee what is in the best interest of the child under RCW 26.09.002(6); and (2) modification of the parenting plan involving an integrated parenting plan under RCW 26.09.184(1)(a). As to the first category, courts have discretion to interfere with a parent’s decision where the parent’s motivation for such decision is not the child’s best interest. This is a very high burden of proof where the non-biological parent must necessarily prove that the custodial parent is intentionally depriving the child of relationships for ulterior motives. The second category requires a much lower standard of proof; however, it must be presented as a motion to modify the parenting plan and must be established within the bounds of a valid parenting plan under RCW 26.09.175.
Common Legal Mechanisms for Stepparents: Adoption and Guardianship
Adoption and guardianship are two legal pathways that can establish clearer rights and obligations for step parents.
When a step parent formally adopts a step-child, they become entitled to exercise the same parental rights as a biological parent. Conversely, the biological parent no longer has authority over the child. Not every step family situation warrants the full spectrum of rights and obligations that comes with legal adoption. A weaker "guardianship" arrangement may suffice, which can provide a less formal solution for a step parent who wishes to give the child more formalized support and protection. Establishing a guardianship also affords the step parent a specific group of rights that are not available to them in most cases without the approval of the biological parent: The process The process for adoption and guardianship in Georgia is very similar. The major difference is that a "Guardian ad litem" is always required to be appointed to represent the child in an adoption proceeding. The requirements and approvals needed for both adoption and guardianship are determined by: Both procedures require: If the step parent and biological parent of the child are divorced, adoption only occurs if the custodial bioparent consents. In general, custodial parents are those to whom a divorce decree entitled custody. If the step parent wishes to adopt but not "marry" the child’s other parent, the adoption can be pursued in conjunction with a separate request for guardianship. Although legal adoption is not necessary to confer guardianship, it will have a stronger effect on the child’s legal status within the family. In Georgia, the substantive procedures for adoption and guardianship are governed by the Georgia Adoption Code. For these requirements and review of potential limitations and prohibitions, consult with an attorney.
Financial Obligations and Rights
In a marriage or civil union, when a child is born, the natural parent (or parents) will have the responsibility to provide for the child financially. So it goes when the relationship is that of a heterosexual man and woman. But once we step outside of that, we see that financial responsibilities also expand and contract in the world of modern families. If a child is born to the biological parent(s) in an opposite-sex relationship, then the child’s other parent may have a child support obligation. Financial obligations with regard to medical insurance for the child are mandatory. If a parent has gone through the process of adoption, they can expect to be on the hook for every expense associated with the child. If the child is a product of artificial insemination or in vitro fertilization, child support is still required – but only if the person who paid for the insemination or sperm donation does not already have parental rights to the child. Those financial obligations are not exclusive to heterosexual relationships. In same sex relationships, the financial obligations vary. If a woman has a baby through artificial insemination with an anonymous donor, her spouse or partner has no responsibility to help her support the child. The same goes for a man who has a child through artificial insemination of his same-sex partner. BUT if the child was conceived through in vitro fertilization and the couples’ sperm or egg was used in a procedure to conceive the child, then the non-biological parent does have a parental obligation to the child. Now what about step parents? If you are the step parent to a child and your spouse is the biological parent, you are not, by law, under obligation to provide for the child. BUT if you legally adopt your spouse’s child, you do have that obligation as well as parental rights. If you are a step parent to the child – either legally or not – you cannot claim that child on your taxes, even if you have been supporting them through the years. Your spouse can claim the child and your spouse may be able to also claim you (if you don’t support your children). It gets tricky if the biological parent is not your spouse, since you usually don’t have the same rights as a stepparent to claim the child on your taxes during that time. Another reason why cohabitation is becoming very popular, regardless of a same sex or same gender couple’s legal marital status.
Legal Precedent: The Lack of Consistency Across Laws
The legal rights of step parents can vary widely depending on the jurisdiction. In the American divorce system, no national standard exists for step parent rights and responsibilities. While some states recognize certain rights for step parents in child custody cases, others do not. For example, the state of California requires a step parent to pay child support if he or she has legal custody of the children. By contrast, in the state of New York, a step parent has no obligation to pay even if he or she has legal custody of the children.
Other countries also differ in their recognition of step parent rights and obligations. For example, in English law, a step parent has no legal right of custody or guardianship of the spouse’s children unless the parties explicitly make such an arrangement in the prenuptial agreement or marriage contract . In Germany, a child born to a married couple after a divorce who remarries does not have an obligation to support a step parent and vice versa. In French law, a step parent has no legal right of custody or support of step children. Where the parties divorce, the step parent has no further relationship with the children of the former spouse.
Civil law countries differ in the recognition of step parent rights as reflected in their adoption statutes. In many civil law countries, adoption triggers a severing of existing parent-child rights but English common law, which many American states still reflect, does not require a severing of existing parent-child rights in step parent adoptions.
How to Formalize a Relationship with Stepchildren
Becoming a step parent can be an incredibly rewarding experience, but when it comes to the law, most step relationships are formally unrecognized. But, with a few simple steps, you can gain an increasingly significant role in your stepchild’s life and even help you communicate more strongly with your stepchild’s other parent.
- Adopt your stepchildren. If you have a close and loving relationship with your stepchildren, you may choose to initiate a stepchild adoption. Some potential reasons to consider a stepchild adoption include: In order to initiate a stepparent adoption, you must first obtain the rights of the biological parent. Most often, this is done by obtaining the consent of your spouse and/or the biological parent (with or without a court hearing), but in certain circumstances, it can be done without formal consent. Typically, a stepparent adoption begins with your filing a petition with the family court in your area. Here, you must submit the consent of the parties involved and may be required to show the court that the biological parent has lost his or her parental rights. Your family court will almost certainly require a complete criminal background check of both you and your spouse.
- Sign legal documentation. While it is always a good idea to have formal documentation for the rights you plan to exercise with your stepchildren, you can also further strengthen your relationship with your stepchildren by having them sign "parent-child" agreements. The most common of these agreements is the post-nuptial co-habitation agreement. Post-nuptial co-habitation agreements are a lot like prenuptial agreements, but deal specifically with the relationship between you and your spouse’s children after your marriage. A post-nuptial co-habitation agreement helps to set forth the terms of the household with your spouse’s children. This agreement is very important if you truly wish to play or have already assumed the role of a parent in your stepchildren’s lives. Other forms of legal documentation between you and your stepchildren include written permission slips (which are especially important when dealing with doctors, educational institutions and government agencies) and even an advanced medical directive (often referred to as a living will).
- Consult an attorney. If you plan to handle the legal odds and ends of your relationship with your stepchild yourself, you can help yourself considerably by consulting a family law attorney. Family law attorneys are particularly familiar with the relationships between step-parents and stepchildren, and they can help you gain legal recognition for your role.
Fighting for Your Rights: Legal Recourse for Stepparents
Despite the special bond and relationships that develop between step parents and step families, the reality is that not all family dynamics are rosy. When relationships between a step parent, biological parent, and stepsiblings become strained, conflict can arise that requires legal intervention. Some of the more common disputes involve custody arrangements and visitation rights. For example, a biological parent may not agree with how their child’s step parent is raising them and may attempt to interfere in their interactions. Or, a former spouse may insist that all overnight visits with their child occur at his or her house, not at the step family’s residence. If reasonable boundaries have already been established through an existing joint custody agreement, then violating those terms could compel the step parent to seek legal recourse. The key to preventing a strained relationship between step families from devolving into a bitter battle is to be honest and forthright about your family’s preferences. Try to resolve conflicts through simple conversations with both your spouse and step children. For instance, if you feel that your spouse’s ex spouse is overstepping their bounds, or is not promoting a positive relationship between you and their child, then consider broaching the subject in a non-confrontational manner. While these types of discussions can be difficult, remember that they should ultimately keep your child’s best interest in mind. If you believe that reasonable efforts toward resolution are being unmet, then seeking professional help through mediation may be necessary. Family mediation is a form of non-adversarial dispute resolution that aims to create a legally binding agreement that both parties will uphold. Like the process of building your step family, mediation can take time, and is best approached with a collaborative spirit and open mind. While it is preferable to resolve conflicts through mediation, you may eventually need to go to court if you can no longer reach an agreement with your spouse’s ex. If this is the case, it is best to consult with an experienced family law attorney who understands your situation and will make every effort to protect your rights as a parent and step parent.
Conclusion: Helping Stepparents Put Laws to Work for Them
As we have explored in this article, step parents possess a range of legal rights and responsibilities, as well as specific obligations and risks. By being aware of the legal landscape, it is easier to navigate the complex family dynamics and ensure that the best interests of the child are upheld. Nonetheless , step parents often face unique circumstances that require the guidance of a qualified attorney. By developing an understanding of their rights and seeking professional legal advice tailored to their needs, step parents can empower themselves to be the best possible advocates for the children they love and raise.
